Stephen Gottlieb: Due process & targeted assassination

Tasked with helping draft a constitution for India after World War II, B. N. Rau traveled abroad speaking to jurists. In Washington, Supreme Court Justice Frankfurter advised Rau not to include a due process clause in the Indian Constitution. Instead India should have a clause simply requiring that no one be charged with a crime but by the law of the land. That was the meaning of the Magna Carta in 1215 which said:

No freemen shall be taken or imprisoned … or in any way destroyed … except by the lawful judgment of his peers or by the law of the land.

That meant Parliamentary supremacy. Whatever crimes and procedures the legislature defined were kosher. But there was no check on the legislature.

In the US, most of the Supreme Court’s decisions on the Guantanamo cases were about whether the president did what Congress said, not about constitutional rules. If the Supreme Court deferred to what the President said Congress meant, as it often does, we would be back to King John before the Magna Carta! The Court didn’t, so at least we have the Magna Carta for Guantanamo.

Most of us would find at least some of our presidents untrustworthy. Probably everyone in our listening audience would have a great deal of distrust for either George Bush or Barack Obama or both! Understand the implications. Giving the president discretion to target someone for assassination, all on his or her own, would imply Murphy’s law – what can go wrong will go wrong. Because we all believe that on someone’s watch, the person in charge will not be trustworthy.

If the wrong president meets the opportunity, will the result be arbitrary murder? This president is asserting the unreviewable discretion to take people out by unmanned drones – Americans, foreigners, individuals – wherever they can be found and eliminated. Will the result be political murders? A reign of terror? New ways to start wars?

If not, why not? Because this president is trustworthy? Because we have “checks and balances”? Giving the president discretion removes those checks and balances. If authority includes accusation and execution, what prevents arbitrary or political murder? If we are going to have executions, we had better have checks and balances. Executives on their own can become a fast ticket to one-person rule or international catastrophe. When does it become too late?

Drones are becoming an international fact of life – the Iranians are copying ours, many others have them. The international implications of risky behavior by the chief executive can be disastrous. War has been started with the assassination of the wrong person. The president doesn’t have the “war power.” Will a little assassination here or there seem safe much as unseating elected rulers seemed safe for America in Iran in 1953, in Guatemala in 1954, and Ghana in 1966 and for the Belgians in the Congo in 1961 to take some older examples for which we still pay high prices.

In the 1970s Americans dealt with the problem involving CIA covert operations. The Senate Intelligence Committee found the CIA had been misused and that America was not better off. So in 1976 Congress revoked the authority to have the CIA execute people in peacetime. Presidential authority to assassinate, whether Americans or foreigners, needs to be subject to the genius of our Constitution – the checks and balances that thwart irresponsible behavior at least some of the time.

To identify the different ways that one person’s authority to execute another can be subjected to appropriate checks and balances would take a lengthy discussion. For this commentary, the point is that we need to have that discussion, and there is no better time.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.

The views expressed by commentators are solely those of the authors, and do not reflect the views of this station or its management.

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